Dear Atty. Vlad,

I am a security guard deployed in one of the hotels in Quezon City. Three months ago, our security manager issued to me a letter recalling my assignment in the said hotel, with a directive to report to the head office. When I arrived at the head office, my manager told me that I will be deployed to another client after three months. I waited after the lapse of three months. When I asked my manager if I can already be deployed to a new client, my manager told me that I will have to wait for another two weeks. Can my employer lawfully do this? Can I charge my employer (or the security agency) with illegal dismissal? I hope you can help me.

Roland

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Dear Roland,

From what you stated, you have been recalled from work three months ago and have been on floating status since.

In the case of Veterans Phils. Scout Security Agency vs. NLRC and Roberto Delos Santos vs. NLRC, G.R. No 78062 and 83927, 28 June 1989, the Supreme Court ruled that before even determining that an employee’s dismissal is for a just or authorized cause, it must be shown that the employer has committed a positive and overt act of dismissal without which the complaint for illegal dismissal must be dismissed. In the case of Luciano P. Canedo vs. Kampilan Security and Detective Agency Inc., G.R. No.179326, 31 July 2013, the Supreme Court ruled:

“In illegal dismissal cases, “while the employer bears the burden x x x to prove that the termination was for a valid or authorized cause, the employee must first establish by substantial evidence the fact of dismissal from service.” The burden of proving the allegations rests upon the party alleging and the proof must be clear, positive and convincing. Thus, in this case, it is incumbent upon petitioner to prove his claim of dismissal.

In the said case of Luciano P. Canedo vs. Kampilan (supra), the Court further stated:

Petitioner relies on the word “terminated” as used in the 25 June 2003 Certification issued him by respondent Arquiza and argues that the same is a clear indication that he was dismissed from service. We are, however, not persuaded. Petitioner cannot simply rely on this piece of document since the fact of dismissal must be evidenced by positive and overt acts of an employer indicating an intention to dismiss. Here, aside from this single document, petitioner proffered no other evidence showing that he was dismissed from employment. While it is true that he was not allowed to report for work after the period of his suspension expired, the same was due to NPC’s request for his replacement as NPC was no longer interested in his services. And as correctly argued by respondents, petitioner from that point onward is not considered dismissed but merely on a floating status. “Such a ‘floating status’ is lawful and not unusual for security guards employed in security agencies as their assignments primarily depend on the contracts entered into by the agency with third parties.”

Countering such status, petitioner contends that even at present, he is still not given any new duties. A floating status can ripen into constructive dismissal only when it goes beyond the six-month maximum period allowed by law. In this case, petitioner filed the Complaint for illegal dismissal even before the lapse of the six-month period. Hence, his claim of illegal dismissal lacks basis. Moreover and as aptly observed by the NLRC, it was in fact petitioner who intended to terminate his relationship with respondents through his planned retirement. This is further bolstered by his prayer in his Complaint where he sought for separation pay and not for reinstatement.

From the said decision of the Court, since you have been on floating status for about three months only. As such, you cannot claim that you have already been illegally dismissed.

I hope I was able to enlighten you based on what you shared to me.

Atty. Vlad del Rosario